CONSIDERATIONS FOR ESTABLISHING SINGLE EQUALITY BODIES AND INTEGRATED EQUALITY LEGISLATION

Transcription

1 CONSIDERATIONS FOR ESTABLISHING SINGLE EQUALITY BODIES AND INTEGRATED EQUALITY LEGISLATION TOWARDS THE UNIFORM AND DYNAMIC IMPLEMENTATION OF EU ANTI-DISCRIMINATION LEGISLATION: THE ROLE OF SPECIALISED BODIES REPORT OF THE SEVENTH EXPERTS' MEETING, HOSTED BY THE EQUALITY COMMISSION FOR NORTHERN IRELAND, JUNE 2004

2 Considerations for Establishing Single Equality Bodies and Integrated Equality Legislation is the seventh in a series of seven publications under the project Towards the uniform and dynamic implementation of EU anti-discrimination legislation: the role of specialised bodies, which is supported by the European Community Action Programme to Combat Discrimination ( ). The other publications in this series are Proving Discrimination (ISBN no. EN: ; FR: ), Protection against discrimination and gender equality - how to meet both requirements (ISBN no. EN: ; FR: ), Equal Pay and Working Conditions (ISBN no. EN: ; FR: ), Discrimination in Working Life Remedies and Enforcement (ISBN no. EN: ; FR: X), Combating discrimination in Goods and Services (ISBN no. EN: ; FR: ) and Strategic Enforcement and the EC Equal Treatment Directives (ISBN no.: EN: ; FR: ). The partners in this project are: Equal Treatment Commission Commissie Gelijke Behandeling P.O. Box NL-3500 DA Utrecht Tel Fax info@cgb.nl Ombud for Equal Employment Opportunities Anwältin für die Gleichbehandlung von Frauen und Männern in der Arbeitswelt Judenplatz 6 A-1010 Vienna Tel Fax gaw@bmgf.gv.at Centre for Equal Opportunities and Opposition to Racism Centre pour l'égalité des chances et la lutte contre le racisme / Centrum voor gelijkheid van kansen en voor racismebestrijding 138 Rue Royale B-1000 Brussels Tel Fax centre@cntr.be Equality Authority Clonmel Street Dublin 2, Ireland Tel Fax info@equality.ie Commission for Racial Equality St Dunstan s House Borough High Street London SE1 1GZ, UK Tel Fax info@cre.gov.uk Equality Commission for Northern Ireland Equality House 7-9 Shaftesbury Square Belfast BT2 DP, UK Tel Fax information@equalityni.org Ombudsman Against Ethnic Discrimination Ombudsmannen mot etnisk diskriminering Katarina Bangata 79 SE Stockholm Tel Fax do@do.se Migration Policy Group 205 Rue Belliard, Box 1 B-1040 Brussels Tel Fax info@migpolgroup.com Project manager: Marcel Zwamborn, Alternate Member of the Dutch Equal Treatment Commission Views expressed in this publication are not necessarily shared by all partners of the project. Editor: Janet Cormack, Migration Policy Group ISBN No.: This publication is also available in French: ISBN No.: Partners of the project Towards the uniform and dynamic implementation of EU anti-discrimination legislation: the role of specialised bodies

3 INTRODUCTION ANTOINETTE MCKEOWN, HEAD OF POLICY AND PUBLIC AFFAIRS, EQUALITY COMMISSION FOR NORTHERN IRELAND CHALLENGES AND CHOICES ESTABLISHING A SINGLE EQUALITY COMMISSION IN NORTHERN IRELAND EVELYN COLLINS SINGLE EQUALITY ACT IN NORTHERN IRELAND ACHIEVING THE VISION IN PRACTICE BARRY FITZPATRICK NATIONAL SPECIALISED EQUALITY BODIES IN THE WAKE OF THE EC ANTI-DISCRIMINATION DIRECTIVES JAN NIESSEN AND JANET CORMACK COMMENTS AND DISCUSSION PROGRAMME PARTICIPANTS 1

4 INTRODUCTION ANTOINETTE MCKEOWN, HEAD OF POLICY AND PUBLIC AFFAIRS, EQUALITY COMMISSION FOR NORTHERN IRELAND 2

5 The Equality Commission for Northern Ireland (ECNI) was delighted to host the seventh and final experts meeting in the framework of the project Towards the uniform and dynamic implementation of EU anti-discrimination legislation: the role of specialised bodies. The meeting took place in Belfast on June The aim of the meeting was to look at integrated equality bodies and legislation and how an integrated approach may support moving beyond minimum standards in the implementation of the EU Directives to a coherent, consistent and progressive equality law regime in an enlarged EU. This issue is one that is currently of great interest to equality actors in many European countries as they reflect on the direction of equality law at the national and European levels. The question of integrated legislation for an integrated equality body is of particular importance to the Equality Commission for Northern Ireland, which, since its inception, has advocated the merging of anti-discrimination legislation in Northern Ireland. The meeting was exceptionally timely, as a discussion paper on options for a Single Equality Bill for Northern Ireland was published by the government the following week. It was also timely given deliberations in the UK on the establishment of a single body for equality and human rights. This reflects an overall trend across European states as specialised bodies and indeed governments deliberate the best structures and processes to ensure effective implementation of the EC Directives. On the first day of the meeting three presentations set the scene for discussions around the topic. Eithne McLaughlin, Professor of Social Policy at Queen s University Belfast, gave a comprehensive and highly stimulating introduction to Equality Cultures and Practices in Northern Ireland, looking at the history of the Northern Ireland Act 1998 and how it shaped the equality environment and agenda. In particular, she examined the innovative statutory equality duty on public authorities in Northern Ireland to mainstream equality in their policy-making. The Challenges and Choices of establishing a single Equality Commission in Northern Ireland was recounted by Evelyn Collins, Chief Executive of the Equality Commission for Northern Ireland who shared issues of significant organisational and stakeholder benefits and outcomes from an integrated model, whilst identifying early challenges and strategies required to consolidate a dynamic, diverse equality body. Structures and Strategies in Europe an overview of changes to European specialized bodies in light of new grounds introduced by Article 13 EC Treaty was the theme of an expert paper delivered by Jan Niessen, Director of Migration Policy Group. The paper explored deliberations across member states on how best to effectively implement the EC requirement for equality bodies and Jan gave an extremely useful analysis of the various models and options available in member states. The second and final day of the experts meeting focussed on a cohesive equality legislative framework. Tony Lockett, Deputy Head of the Unit for Anti-discrimination, Fundamental Social Rights and Civil Society of the European Commission s DG Employment and Social Affairs, opened the morning s discussions with an overview of the European Commission s Green paper on Equality and non-discrimination in an enlarged European Union. This prompted much debate on coherence across Europe on equality legislation and on future collaboration among equality bodies from existing and new member states. Ivan Millen, a senior officer with the Single Equality Act s project team in the Office of the First Minister and Deputy First Minister provided a resume of the government s Green Paper on single equality legislation, outlining how Achieving the Vision in Practice was developed. This was followed by a response from Professor Barry Fitzpatrick, Legal Adviser to the Equality Commission, who provided the Commission s vision for an Act which encompasses international best practice, effective definitions of discrimination, freedom for employers and service providers to take a more proactive approach towards the promotion of equality, a less adversarial system of Commission investigation and a more effective system of judicial process, ensuring a clear equality for all agenda. Workshops on both days enabled participants to discuss and identify future priorities for the trans-national project and areas for further collaboration between project partners. This meeting marked the end of the two-year specialised bodies project which sought to promote cooperation between national specialised equality bodies, facilitate the exchange of knowledge and best practice, and ultimately harmonized implementation of the EC anti-discrimination directives. The project partners would like to take this opportunity to thank the European Commission for its support through the European Community Action Programme to Combat Discrimination. The partners look forward to further cooperation in the future in an expanding network of equality bodies from across Europe. We hope this publication is of value to their ongoing work, to that of other bodies specialising in enforcing anti-discrimination legislation and promoting equality and to all organisations with a commitment to addressing inequalities and discrimination in all its forms. 3

6 CHALLENGES AND CHOICES ESTABLISHING A SINGLE EQUALITY COMMISSION IN NORTHERN IRELAND EVELYN COLLINS, CHIEF EXECUTIVE, EQUALITY COMMISSION FOR NORTHERN IRELAND 4

7 The statutory remit of the Equality Commission for Northern Ireland is to eliminate discrimination on the grounds of race, religious belief, political opinion, sex, marital status, disability and, since December 2003, sexual orientation; and to promote equality of opportunity on these grounds in the field of employment and except for sexual orientation in the provision of goods, facilities and services and housing or accommodation. We also have a duty to promote affirmative action under the fair employment legislation which deals with discrimination on the grounds of religious belief and political opinion; and we have explicit duties to keep the anti-discrimination legislation under review. Our powers and duties are drawn from a considerable number of anti-discrimination statutes dating back to Two separate pieces of legislation that year addressed discrimination on the grounds of religion and politics, establishing the Fair Employment Agency (which later became the Fair Employment Commission) and, on the grounds of sex, setting up the Equal Opportunities Commission for Northern Ireland. Both these Commissions had powers similar to those of the Equality Commission today. The religion and political opinion legislation was considerably strengthened in 1989, with employers placed under an obligation to monitor the composition of the workforce by community background and to report to the Commission on this composition. Where there was evidence of under-representation of Catholics or Protestants, affirmative action measures were required to address such under-representations through the use of measures such as special encouragement to people from one or the other community to apply for posts, for example. New grounds were added to the anti-discrimination law framework with the 1995 Disability Discrimination Act and the 1997 Race Relations Order, the latter setting up a Commission for Racial Equality for Northern Ireland with responsibility for enforcement and promotion of equality of opportunity on grounds of race. Protection against discrimination on grounds of sexual orientation was introduced by way of Regulations in December 2003 and these Regulations gave the Equality Commission specific powers and duties in relation to this ground. This differs from the position in the rest of the United Kingdom where no equality body has been given such powers and duties in sexual orientation. It is evident that through the 1990s, there was a growing interest internationally in mainstreaming equality, as a complementary approach to the more traditional methods of tackling discrimination such as anti-discrimination legislation. In line with this, through the work of the various equality bodies in existence then, along with a number of NGOs, there was a general call for an equality duty on a statutory footing. This growing interest was reflected in a major review of fair employment legislation in the 1990s. One of its recommendations was to introduce a statutory requirement on mainstreaming in the public sector. The Government s Policy Appraisal and Fair Treatment Guidelines (PAFT) during the 1990s had introduced this on a voluntary basis but the response to this voluntary approach was patchy across the public sector and, indeed, PAFT tended to be ignored by some statutory bodies. The Government s response to the Standing Advisory Commission on Human Rights (SACHR) Review of Employment Equality, issued in March 1998, in the White Paper Partnerships for Equality was to accept SACHR s recommendation for a statutory equality duty. The White Paper also mooted merging the various equality Commissions into a single body, with a view to ensuring the effective implementation of the duty. The issue then got included in the political discussions leading to the Belfast Agreement of April 1998, a central theme of which is of course equality and human rights. The proposal to merge the existing equality bodies was opposed by some of the former equality bodies although welcomed by the Fair Employment Commission. There was a range of differing views among the constituencies, with concerns expressed about the possible impact of a single equality body on the individual equality strands. Indeed, most single equality strand groups were opposed at the time but there was a clear enthusiasm for the introduction of a statutory equality duty. 5

8 The political decision to merge the former bodies was implemented in the Northern Ireland Act of July 1998 S74 and Schedule 8 on the Equality Commission for Northern Ireland and S75 and Schedule 9 on the statutory equality duty. The start date for the new Commission was unclear for a period of time after the Act was introduced; this was also a time of uncertainties around the start of the devolved administration for Northern Ireland. In advance of setting up the Commission, a working group comprising the Chairs and Chief Executives of all the existing bodies, plus an official from the recognised public service trade union (NIPSA), was set up towards the end of 1998 at the request of Minister Paul Murphy. The working group had an independent Chair, Dr Joan Stringer, and its report focused on Commission appointments, start up structure, consultative councils and strategic priorities. The very short timescale within which the working group had to work meant that there was limited consultation but this was undertaken during the time and a report was published in March Commissioners were sought by way of public advertisement in February/March 1999 and the working group had recommended that these were general appointments as opposed to appointment of people who would champion single strand issues. The NIO appointed the Commissioners in August There can be up to 20 Commissioners and the legislation requires that they are representative of the community in Northern Ireland as a whole. The transfer Order took effect on 1 October 1999 with all staff transferring with employment terms and conditions of the pre-existing bodies. EARLY CHALLENGES We had to deal with a number of issues arising out of the merger of the former equality bodies, which differed in terms of size, strategy and resources as well as political attention, while we worked to build a single body with a new structure and its own distinctive organisational culture. Some of the pre-existing organisations had been opposed to the merger and this was a challenge in building a single body. Practical issues also, such as no new accommodation for almost two years so that we could all work together in the same building, proved unhelpful at the outset. We also had to ensure that we were equipped to fulfil fully our responsibilities for new areas of responsibilities such as the statutory equality duties. The timescale on this was running, as public authorities had from 1 January 2000 to 30 June 2000 to put together their Equality Schemes and forward them to us for approval. From 1 April 2000, the Commission had enforcement powers in respect of disability and considerable efforts were put into preparing for this, including undertaking a major recruitment exercise for staff to work on the disability ground. It also has to be said that devolution impacted greatly on our work with a great deal of interest from individual politicians and political parties. CHOICES STRATEGIC DIRECTION Of course, the new Commission had choices in terms of its strategic direction based on our statutory remit. We are an independent public body, a body which has a role in the process of Government, progressing the achievement of public policy objectives in terms of equality, but we are not a government department. We operate at arms length from government but the general policy framework we work to is agreed by the relevant Government Minister of our sponsor department, the Office of the First Minister and Deputy First Minister (OFMDFM) through three-yearly corporate plans. The first corporate plan we published for consultation in March 2000 with four broad corporate priorities mainstreaming equality of opportunity and promoting inclusion; combating discrimination and promoting equality of opportunity; developing partnerships for change; and building organisational effectiveness. There were many good aspects of this plan. It was clear, and the tasks we set out to achieve were spread over all the equality areas so that people interested in particular strands could see their issue being brought forward. There were less satisfactory elements as well; it was perhaps not focussed enough, for example. 1 Report of the Equality Commission working group, March 1999 (OFMDFM) 6

9 In hindsight however, the first corporate plan was probably the most appropriate or workable start-up position on strategy, given timescales, the history of the pre-existing organisations, different legislation etc., and the job of work we had to bring these together. Our second corporate plan is much more focussed. We used a particular methodology, the Balanced Scorecard, to help achieve this and it sets out clearly our mission combating discrimination and promoting equality of opportunity through advice, promotion and enforcement. Our strategy aims to provide a balance between litigation/ promotion/research and policy work. All these levers are important in our work to achieve change, with encouragement and advice on doing the right thing balanced with vigorous enforcement of the law. This sends a strong message of the need for compliance with often long fought for equality laws. The corporate plan sets out our corporate objectives and is supplemented by annual business plans. Through a rigorous planning cycle involving public consultation, we seek to use our resources effectively to address both enduring inequalities such as job segregation, harassment, pregnancy discrimination and unequal pay; and emerging inequalities such as terms and conditions of migrant workers, racially motivated attacks, issues around access and reasonable accommodation for people with disabilities, and issues of discrimination on grounds of sexual orientation. Our specific objectives are as follows: To provide and promote a range of high quality, targeted and accessible services and to increase awareness of equality issues To mainstream equality effectively in public policy and service provision To influence change in equality legislation To make effective, efficient and strategic use of our resources To control costs To secure funding to maintain and develop our services To utilise effectively our powers to tackle discrimination and promote equality of opportunity through advice, research, promotion and enforcement To have the staff numbers and skill levels required to deliver our services To be recognised as an excellent service provider. CHOICES ORGANISATIONAL STRUCTURE The Commission also had choices about its organisational structure. The start-up position was separate directorates based on the remit of the former Commissions, thus single strand except in respect of resources, and we set up a Statutory Duty Unit in April My appointment as Chief Executive took effect in March 2000 and I spent some time in my first few months on internal discussions on structure, following which we moved to functional divisions as being a more efficient and effective use of our resources. We had three Divisions Policy and Public Affairs, Legal, and Operations and Corporate Services, and integration of service delivery ongoing with work to develop an integrated equality agenda. We recognised at that time the importance of focus on separate identity work also and we retained specialist development units on race and disability together with setting up reference groups on gender and fair employment. We have looked again recently at our structure, in light of the plans set out in the second corporate plan, and we will be making some changes to help us focus effectively on key strategic priorities. 7

10 ONGOING CHALLENGES We face ongoing challenges like all other public bodies; for example, managing finite resources against the potentially unlimited demand for our services. We faced particular issues in providing support for legal cases and legal expenditure. There was some diversion of resources from other areas of work as there was an increase in assistance rates over the early period which needed to be addressed. There is also a wide spectrum of external expectations, perhaps unsurprising in light of the political priority given to equality issues in Northern Ireland and the strength and vibrancy of the NGO sector. The range of political interest in the developing equality agenda can mean that the agenda is a much contested one. For us, political independence is vital and we work hard to ensure that we bring objective analysis to the arena, and work on priorities according to identified need. We also need constantly to be vigilant against the creation of a hierarchy of discrimination, where there might be a drift into a greater allocation of resources and attention on some equality strands rather than others. There can also be potential conflict between the individual equality strands and we need to ensure that these are dealt with appropriately. Particular challenges have arisen from the absence of single equality legislation; we still operate with the range of anti-discrimination statutory remits that have emerged over the last three decades. We had called for a Single Equality Act (SEA) in the March 2000 draft Corporate Plan and the Northern Ireland Executive responded positively in its first Programme for Government in July While we do not consider the single equality legislation is a fundamental requisite for a Single Equality Commission we have demonstrated that we can work with a different legislative framework it would clearly be helpful to have a Single Equality Act and we are looking for harmonised provisions in respect of monitoring/ affirmative action. We also want the new areas of age and sexual orientation to cover goods, facilities and services as well as employment, and we are looking for extension of our powers, for example on formal investigations. 2 OFMDFM began consultation on a SEA in There have been delays in progressing with legislation, although a consultation paper is now available with a closing date for comment of 12 November Having cited a number of challenges, I believe we can also record some real achievements from our work over the last four years. But rather than focusing on these achievements, I want to talk about the learning points derived from a multi-strand approach to equality. LEARNING POINTS I believe there are considerable benefits in developing the multi-strand approach to equality. Looking at the whole picture of social inclusion and equality, at disadvantage across the equality categories, leads to the development, I believe, of a much stronger, holistic vision for change for the better in society. This approach allows us to mainstream equality and maximise opportunities, and allows us to learn lessons from one area to advantage other equality strands. We also have an easier engagement with multi-identity issues, in recognizing that all of us are defined in a multiplicity of ways, not just by our gender or race or other identity. 2 Position papers on SEA are on our website ( 3 Discussion paper: A Single Equality Bill for Northern Ireland, OFMDFM ( 8

11 In practical terms, as a much larger organization than any single strand body, we have much more influence and are much harder to ignore or sideline. It is also easier for our customers and stakeholder to come to a one stop shop on equality advice and good practice, rather than go to several different agencies. From a resource point of view we can ensure effectiveness in our provision with allocation of resources across the dimensions as well as on administration. For staff, there have been some real growing and learning opportunities about new areas of work which have been helpful in creating and maintaining energy and enthusiasm for our work. Finally, as a single equality body I believe that we provide a real focus for equality in Northern Ireland and that this itself helps us to contribute to a greater impact on society as a whole. EUROPE The Commission is committed to contributing at the European Union level as well as locally and nationally. We have considerable experience of working on a range of single strand equality issues and now of working on a multi-strand basis also and we are keen to share this experience and to learn from our counterparts across the EU. The importance of maintaining a focus and commitment at EU level on social progress as well as economic progress remains as vital as ever. 9

12 SINGLE EQUALITY ACT IN NORTHERN IRELAND ACHIEVING THE VISION IN PRACTICE BARRY FITZPATRICK, HEAD OF LEGAL POLICY & ADVICE, EQUALITY COMMISSION FOR NORTHERN IRELAND 10

13 1. INTRODUCTION As set out in the paper of Evelyn Collins in this volume, Challenges and Choices Establishing a Single Equality Commission in Northern Ireland, the need for single equality legislation in Northern Ireland, particularly after the inception of the Equality Commission, was well recognised. This was one of the first demands of the new Commission in The first Programme for Government of the Northern Ireland Executive included the commitment to, during 2002, bring forward proposals to develop and harmonise anti-discrimination legislation as far as practicable. An extensive consultation process was undertaken by the Office of the First Minister and Deputy First Minister (OFMDFM) in The Commission made its first detailed contribution to this debate, Single Equality Bill Initial Position Paper in September 2001 and has continued to make contributions to that debate since that time. 5 OFMDFM has now launched a Green Paper on a Single Equality Bill for Northern Ireland. 6 The ECNI intends to finalise its response in early September so that it can promote its recommendations up until the end of the consultation period in November Nonetheless, it is now anticipated that a Single Equality Act (SEA) will not come into effect in Northern Ireland until early This significant gap between the anticipated production of a Single Equality Bill in 2002 and an eventual Act in 2007 is partly explained by periods of direct rule from Westminster while the Northern Ireland Assembly was suspended. A second significant factor was implementation of the two EU Directives, the Race and Ethnic Origin Directive 2000 (REOD) which required amendment to the Race Relations (Northern Ireland) Order 1997 (RRO) in relation to race and ethnic origin (but not nationality or national origins) by July 2003 and the Framework Employment Equality Directive 2000 (FEED). The latter, the scope of which only includes employment and training, required amendment to the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) in relation to religion or belief (but not political opinion) and the introduction of legal protection against sexual orientation discrimination in employment by December The Framework Directive also requires amendment to the Disability Discrimination Act 1995 (DDA) and the introduction of age discrimination in employment law by December We also need to be aware of implementation by 2005 of the Revised Equal Treatment Directive 2002 which updates and enhances gender equality law set out in the Sex Discrimination (Northern Ireland) Order 1976 (SDO)(as amended). Therefore, while the Republic of Ireland put in place comprehensive equality legislation before implementation of the EU Directives, 7 Northern Ireland s efforts to produce the same were paradoxically delayed by implementation of the Directives, albeit that they have established an EU wide code of equality rights. By way of introduction, two further aspects of the Northern Irish context should be mentioned. The first is the statutory equality duty on public authorities to have due regard for the need to promote equality of opportunity on nine grounds, as set out in section 75 of the Northern Ireland Act A further paradox of the Northern Ireland situation is that the statutory equality duty is not playing a prominent role in the debate on the SEA. This is largely because section 75 is a reserved matter for the Westminster Parliament. Any revisions of it would require amendments to the Northern Ireland Act 1998, seen as a constitutional act which should only be amended with caution. It must also be remembered that the statutory equality duty is a process-driven duty. It does not create individual substantive rights. Nonetheless, the grounds in section 75 and experience of the processes underpinning that section have an important bearing on the SEA debate. A further specific aspect of the Northern Irish context is the proposal to have a Bill of Rights for Northern Ireland. 8 Without dwelling on the intricacies of this process, any Bill of Rights for Northern Ireland will include an equality chapter. This will form a floor of rights against which any equality legislation for Northern Ireland will be judged. As such, the eventual content of the Bill of Rights will have an important bearing on the drafting of the SEA A Single Equality Bill for Northern Ireland A Discussion Paper on options for a Bill to harmonise, update and extend, where appropriate, anti-discrimination and equality legislation in Northern Ireland (OFMDFM: June 2004)(henceforth described as the Green Paper ). 7 Employment Equality Act 1998 and the Equal Status Act Most recently, the Northern Ireland Human Rights Commission has produced an Update Report, Progressing a Bill of Rights for Northern Ireland (NIHRC: April 2004) ( to which the Commission has recently responded. 11

14 2. SOME GUIDING PRINCIPLES Despite the fundamentally different approaches underlying the statutory equality duty and the development of substantive equality rights, the objective remains the same, namely the mainstreaming of equality into the policies and practices of employers and service providers. The Commission is the first to recognise that each ground of inequality brings with it its own practical issues. In this sense, some degree of diversity must be accepted within a single statute. Nonetheless, the Commission is committed to a common template across all the grounds in the SEA. In order to achieve this common template, it is necessary to have common principles but also effective principles. It is also necessary to have common, but also effective, enforcement mechanisms. The objective is a statute which provides for the maximum facilitation for those organisations which wish to pursue equality but also the maximum impetus for those organisations which merely wish to satisfy (or even avoid) equality principles. In a sense, the Commission envisages a rising floor of principles below which the standards of the SEA cannot fall. The first is non-regression, a concept now familiar to European equality lawyers as articulated, for example, in Article 8.2 FEED which provides, The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive. The Commission would obviously wish to see this principle apply across the scope of the SEA. Indeed, OFMDFM has set out a range of its own principles, one of which reads To provide an effective, efficient and equitable framework of legislation and public policies to help eliminate unlawful discrimination and promote equality of opportunity and to demonstrate no regression from existing law. 9 So also the Commission would wish to see satisfaction of international standards 10 and harmonisation to the best standard in the existing regimes. Implicitly, this is recognised in the Green Paper through the principle, To minimise the tendency for hierarchies of inequalities to develop and to address the multiple identities held by all, which should ease the legal complexities of multiple discrimination cases before tribunals or courts. 11 In many ways, equality of the inequalities is a mantra in Northern Irish equality policy, not because there are no meaningful differences between the various grounds (and the scope of their coverage) within a SEA but because it is difficult to justify a hierarchy particularly to those who are members of protected groups which do not gain the level of protection enjoyed by others. Hence, at least implicitly, the combination of non-regression and equality of the inequalities leads towards harmonisation to the best standards, although there must be room for what might be called variable geometry within the SEA, namely carefully constructed situations in which the differences between grounds must be respected through modest variations of the common template. Finally, the Commission is committed to the establishment of best practice on a comparative basis. This involves both examination of other equality law regimes but also analysis of the successes and failures of nearly 30 years of equality law in Northern Ireland. Hence, the development of a SEA presupposes some creative and inventive thinking on what common template is going carry equality law and policy through the next 30 years. It is in this sense that the Commission is calling for effective definitions and effective enforcement. It is impossible in this short piece to do justice to the wide-ranging proposals which the Commission has already made as part of this debate. Our position papers are on our website and our response to the Green Paper will be posted there as soon as it is agreed in early September. The rest of this paper gives a brief outline of some of the controversies which have been addressed and how the Commission would wish to see them resolved. 9 Green Paper, p This is also reflected in the Green Paper, again at p 17 by the principle, To ensure compliance with international human rights treaties, which promote equality and prohibit unfair discrimination, as well as compliance with European law. 11 Ibid, p 20 12

15 3. GROUNDS A fundamental issue at the heart of the SEA debate is the potential list of grounds to be included. It is tempting to adopt a long list approach, embracing any ground which has the vaguest qualification for inclusion. The Commission would be unsatisfied with any list which did not include the nine grounds in section On the other hand, the latest version of the Equality Section of the Proposed Bill of Rights adopts a long list approach. 13 As the Commission stated in its response to the Northern Ireland Human Rights Commission Update Paper, [it] has called for a lively debate on some of the potential grounds set out in section 4(3) but has reserved its position on their inclusion in a Single Equality Act. It may be that a long list approach is appropriate for a constitutional document and a shorter list where the entire edifice of an equality law regime, including indirect discrimination and affirmative action, is applicable. In an equality statute, the Commission would wish to see a sense of focus on grounds which would benefit from an equality law approach and would not wish to see that regime diminished through more widespread litigation and increasing uncertainty over what is lawful and what is not. The Commission is also of the view that the significant rights and responsibilities associated with some of these grounds may be better articulated and protected through specific legislation directed at the particular issues which these grounds raise rather than through inclusion in an equality law statute. 14 Nonetheless, the Commission is committed to the inclusion of an other status ground in the SEA. This inclusion would permit the orderly extension of the SEA grounds, either through ministerial order or judicial interpretation, as has occurred in relation to sexual orientation through the other status ground in Article 14 of the European Convention of Human Rights. 4. SCOPE Scope envisages both the activities to be covered by the SEA and, by logical consequence, the capacities in which individuals are to be protected. Despite significant variations, pre-existing equality law in Northern Ireland and in Great Britain includes, within its scope, education and goods, facilities and services ( GFS ). What is already a patchwork of marginally different provisions across different regimes has become extraordinarily complicated though implementation of EU Directives, only within the scope of the Directives themselves and not within the wider scope of the pre-existing statutes. Paradoxically, the REOD provides the widest scope of all, with the EU race equality regime covering goods and services, education, social protection and social advantages. There is of course an umbilical link between grounds and scope. Subject to particular aspects of variable geometry, the Commission is firmly of the view that, once a ground is to be included in the SEA, the full scope of the Act should apply to it. The infrastructure of EU equality law has largely developed in the field of gender employment equality law but the significance of the 1968 Regulation on Free Movement of Workers, applying equality principles across a wide range of human activity, 15 should not be under-estimated. In some ways, the applicability of what is essentially employment equality law to other fields of activity should not be problematic. After all, the same organisation which is an employer is also a provider of goods, facilities and/or services etc. On the other hand, the applicability of equality law outside the labour market across a lengthening list of equality grounds raises potentially unpredictable results. The approach in the Green Paper is to pose questions as to whether existing regimes should be extended into new areas. The Commission s approach is to anticipate that the equivalent scope will apply to each ground unless there are pressing reasons, based on the diversity between grounds, for some degree of variable geometry, whether in relation to scope of protection or the timing of when that protection should be introduced. 12 These are set out in section 75 in terms of the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation, between men and women generally, between persons with disability and without and between persons with dependants and without. 13 Section 4(3) provides:- Everyone has the right to be protected against any direct or indirect discrimination whatsoever on any ground (or combination of grounds) such as sex, marital or family status, sexual orientation, genetic features, race or ethnic origin, nationality, colour, language, religion or belief, political or other opinion, disability, possession of a criminal conviction, national or social origin, association with a national minority, property, birth, parentage, age, residence, status as a victim or any other status. 14 Response Paper to Update Paper (ECNI: July 2004), p Regulation 1612/68 EEC covers discrimination on issues such as housing and social advantages as well as employment. 13

16 5. DEFINITIONS 5.1 Direct discrimination The definitions to be employed in the SEA are the vital bedrock upon which the strategic enforcement of equality law can be built. The Commission has reservations about aspects of both the direct and indirect discrimination definitions set out in the Directives. They are minimum standards below which implementation should not fall but there is a danger that a floor of European equality rights may become a ceiling above which EU States do not wish to legislate. In relation to the definition of direct discrimination, Art 2.2(a) ROED/FEED states that direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1. Although this is based on a British definition of direct discrimination, it grounds the notion of direct discrimination strictly on a comparative basis. 16 The view of the Commission is that a comparator is evidence of discrimination but not the essence of discrimination. The real rationale for direct discrimination is to prohibit reliance on a discriminatory factor. Given reference to the notion of particular disadvantage in relation to indirect discrimination, the Commission would wish to see a definition which provides that direct discrimination occurs when a disadvantage is based upon a prohibited factor Harassment In relation to harassment, which is subsumed with the definition of discrimination in both the REOD and the FEED but is considered a separate cause of action in the GB and NI legislation, the Commission has welcomed an explicit definition of harassment. 18 However, the provisions of Article 2.3 require both a violation of dignity and the creation of a hostile environment. In keeping with established UK case law, the Government accepted that the principle of non-regression 19 required a conjunctive approach in both GB and NI implementation, so that either a violation of dignity or the creation of a hostile environment could be enough to satisfy the definition. 5.3 Indirect discrimination The Commission also has its reservations with the definition of indirect discrimination provided in the REOD and the FEED. Art 2.2(b) ROED/FEED provides that indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. On the one hand, the Commission welcomes the non-statistical approach towards indirect discrimination encouraged by the use of the concept of particular disadvantage. On the other hand, the Commission is uncomfortable with the legitimate aim element in the definition. For specialised agencies combating unlawful discrimination, indirect discrimination is a vital component in their armoury against institutionalised or systemic discrimination. A weakened objective justification test compromises that objective. The ECJ enunciated a necessary aim test in the seminal indirect discrimination case, Case 170/84 Bilka- Kaufhaus. 20 A legitimate aim test for objective justification in welfare equality cases has proved fatal to a wide range of indirect discrimination challenges. 21 So also, in relation to statutory employment schemes as in ex parte Seymour-Smith, 22 the invocation of a legitimate aim test by the ECJ has set a standard which the Member States have found little difficulty in satisfying. Hence, the Commission recommends that the definition of indirect discrimination include a necessary aim standard in its test for objective justification Some vital ECJ judgments in gender equality law, Case C-177/88 Dekker ([1990] ECR I-3941) and Case C-32/93 Webb v EMO Air Cargo (UK) Ltd ([1994] ECR I-3537), both on pregnancy discrimination, and Case C-13/94 P v S ([1996] ECR I-2143), on gender assignment discrimination, cannot be easily reconciled with a comparative approach at all. 17 See, for example, Equality Legislative Reform: Implementation of European Union Directives, (ECNI: July 2002), pp 5-6 ( 18 ibid, p Article 8.2 FEED. 20 [1986] ECR See, for example, Case C-444/93 Megner [1995] ECR I Case C-167/97 R v Secretary of State ex parte Seymour-Smith [1999] ECR I See, for example, Equality Legislative Reform: Implementation of European Union Directives, p 7. 14

17 5.4 Reasonable accommodation In the FEED, the issue of reasonable accommodation is treated purely as a matter of disability discrimination. Article 5 is both a free-standing provision but also the basis for objective justification for indirect discrimination in disability cases. As in UK law on disability discrimination in employment, 24 Article 5 provides for reasonable accommodation in a particular case. However, the provisions of the DDA on discrimination in the provision of goods, facilities and services provide for reasonable adjustments for disabled persons, which is interpreted to involve an anticipatory duty on the part of service providers. 25 In these circumstances, it seems illogical not to apply an anticipatory duty to employment and training also. Perhaps more significantly, the Commission would also wish to see the reasonable accommodation duty apply to all the grounds in the SEA. A generalised reasonable accommodation duty is frequently invoked in the Canadian equality law system. It is a more direct and proactive duty than that which emerges from the technicalities of applying the indirect discrimination principle. Hence the Commission would wish to see it applied to all grounds. 6. GENUINE OCCUPATIONAL REQUIREMENTS The Commission accepts that it may be necessary to provide that certain jobs should only be undertaken by women, blacks, gays and lesbians etc. Indeed, once a solid platform of equality law is established, there may be arguments that diversity must be respected particularly for previously disadvantaged groups. 26 One controversy in the UK has been whether to persevere with a specified list approach towards GORs as was the case in the sex discrimination and race discrimination legislation or move to a general definition as in the REOD and the FEED. In essence, implementation of the REOD has involved retention of the list approach but supplemented by the general definition. Implementation of the FEED has involved a general definition approach, although in NI, it was determined that the essential nature of the job test in the FETO, 27 being an even stronger test than that in Article 4.1, could not be diluted by enactment of either the general GOR or the more specific GOR in relation to religious ethos organisations in Article 4.2. This has not prevented the UK Government from enacting more specific organised religion exceptions in the GB and NI sexual orientation discrimination legislation. 28 The Commission wishes to see all exceptions proposed for the SEA to be rigorously examined. The SEA is an opportunity not only to create a common template but also to question the continuing validity of many exceptions which may have appeared necessary in the past but no longer perform a useful function. Indeed, many exceptions in UK sex discrimination law and now other pre-existing regimes have been successfully challenged through exploitation of EU equality law POSITIVE ACTION Article 7.1 FEED provides that [w]ith a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article This formulation, already well tested in the case law of the European Court of Justice (ECJ), 31 provides a significantly wider scope for positive action, albeit short of quotas, than is permitted at present in either GB or NI equality law. Essentially the UK approach is to allow for training programmes specific to a disadvantaged group, such as women-only or ethnic minorityonly training. The Commission would wish to see a significantly expanded role of positive action in line with the permissive limits of the EU definition. Employers (and service providers) should be able to introduce positive measures to include previously disadvantaged groups in employment and the receipt of services without the danger of an indirect or a direct discrimination action being taken against them. There may well be a role for the Commission in approving such schemes. As mentioned above, a core objective of the Commission is maximum 24 Section 6 of the Disability Discrimination Act 1995 (DDA) is concerned with reasonable adjustments for a particular disabled person. 25 DDA, section One difficulty which the Commission has with the REOD is that it does not explicitly provide for what might be called a general service requirement (GSR), i.e. an equivalent provision to the GOR for the purposes of the provision of goods, facilities and services, e.g. a support service for black and minority ethnic recipients. The Commission would wish to see a GSR in the SEA subject to the same stringent requirements as GORs. 27 Article 70(3) of the Order provides:- (3) So far as they relate to discrimination on the ground of religious belief, Parts III [employment] and V do not apply to or in relation to any employment or occupation where the essential nature of the job requires it to be done by a person holding, or not holding, a particular religious belief. 28 See the Employment Protection (Sexual Orientation) Regulations, Article 7(3) (GB) and the Employment Protection (Sexual Orientation) Regulations (Northern Ireland), Article 8(3), held, on a narrow interpretation, not to be outside the scope of Article 4.1, FEED (R (on the application of Amicus-MSF and others) v Secretary of State for Trade and Industry [2004] IRLR 430 (High Ct)). 29 Many examples from EU gender equality law include Case 222/84, Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR Article 5 REOD is couched in similar terms. 31 See, for example, Case C-450/93 Kalanke v Bremen [1995] ECR I-3051 and Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I